Form of words:
New Delhi: The Supreme Court on Thursday set aside two controversial judgments passed by the Nagpur Bench of the Bombay High Court in January this year that interpreted provisions of sexual harassment under the Protection of Children from Sexual Offenses (POCSO) Act in such a way. Called “bizarre”, “not legally sound” and “absurd” by legal experts.
The first judgment of the High Court was passed by Justice Pushpa Ganediwala on January 15. freeing a 50 year old man Holding the hand of a five-year-old girl and opening her pants in front of her is not sexual harassment under the POCSO Act.
NS second judgment On January 19, the same judge was heard interpreting sexual assault under the POCSO Act to include only “skin-to-skin” contact with sexual intent.
However, the Supreme Court has now held that the judges of the High Court “fell in grave error” in arriving at the decisions, and set them aside. The court was hearing appeals filed by the Attorney General of India, the National Commission for Women and the Government of Maharashtra.
In his judgment, Justices UU Lalit, S. Ravindra Bhat and Bela M. Trivedi said that in order to prove sexual harassment under Section 7 of the POCSO Act, the prosecution would not be required to prove “skin to skin”. ” Contact Ajay.
It stressed that limiting the interpretation of the words “touch” or “physical contact” to “skin-to-skin contact” would not only be a narrow and pedantic interpretation of the provision contained in section 7 of the POCSO Act, but it would also lead to “the said provision”. absurd interpretation of”.
Section 7 of the Act states that a person commits sexual assault if he “with sexual intent touches the vagina, penis, anus or breast of a child or the child touches the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent, which includes physical contact without penetration”.
In his concurrence, Justice Bhat called Justice Ganediwala’s interpretation of the law “unacceptable” and ruled that Section 7 is meant to cover both direct and indirect touch.
Read also: Story of 2 chargesheets in POCSO case: Why the court pulled up Delhi Police for ‘betrayal, cheating’
Purpose behind the implementation of POCSO Act
The court began by observing the purpose of making the POCSO Act in force and held that by adopting such an interpretation of the provision, the purpose of the law would be defeated.
“The object of enactment of the POCSO Act is to protect children from sexual exploitation, and if such a narrow interpretation is accepted, it will give rise to a very harmful situation, defeating the very purpose of the Act, because In that case the sexual or non-sexual parts of a child’s body with gloves, condoms, bed sheets or clothing, though done with sexual intent, would not amount to the offense of sexual assault under section 7 of the POCSO Act.
It stressed that the most important component to constitute the offense of sexual harassment under Section 7 of the Act is “sexual intent”, and not “skin-to-skin” contact with the child.
The court further considered the impact of sexual assault on children, observing that it “could not be oblivious to the fact that traumatic sexual assault committed on underage children can have an impact throughout their lives.” is, and it may also have an adverse effect on their mental state”.
Touching of any sexual part of the child’s body with sexual intent or any other act involving physical contact with sexual intent cannot be considered trivial or insignificant or peripheral so that such act is excluded from the scope of “sexual assault” Can go “Under section 7,” the court further said.
two cases
NS January 15 verdict The order was passed on an appeal filed by the accused challenging a trial court order holding him guilty of sexually assaulting a five-year-old girl.
According to the complaint, accused Libanus had entered the house of a woman and molested her five-year-old daughter in February 2018. On returning from work, the woman alleged that she saw Libanus holding her daughter’s hand in the house. and was trying to take her to a room in his house.
According to the verdict, the woman alleged that her daughter told her that the accused exposed herself and “asked her to come to bed to sleep”. The mother also observed that “the zip of the pants of the appellant/accused (Libanus) was opened”.
While the trial court had convicted Libanus in October last year, the high court felt that the charges did not fit the definition of sexual assault under the POCSO Act, observing, “the act of holding, or ‘opening’, the hands of the accuser.” “In the opinion of this Court, ‘zip of pants’, as alleged by PW-1 (girl’s mother), does not fit the definition of ‘sexual assault’.”
one in Holocaust Passed on January 19, Justice Ganediwala acquitted one Satish under section 7 (sexual assault) of the POCSO Act, while ruling that the act of groping a child’s breast without any skin-to-skin contact and sexual intent was sexual. Attack is not. Law.
“The act of pressing on the breast of a child of 12 years of age, in the absence of any specific explanation as to whether the head was removed or whether she put her hand up and pressed her breast, shall not fall within the definition of ‘sexual’ ‘Attack’,” the Ganediwala judgment had said.
It stressed that physical contact for sexual assault under section 7 of the POCSO Act would mean “direct physical contact i.e. skin-to-skin contact”.
The court said it was not the case of the prosecution that Satish had “removed her braid and pressed her chest”. It then said that it falls under section 354 (criminal force majeure on a woman, with intent to outrage her modesty) of the Indian Penal Code (IPC), and instead would have held Satish guilty under this provision. Is.
This led to his sentence being reduced from rigorous imprisonment of three years – minimum under section 8 of the POCSO Act, which gives punishment for offenses listed under section 7 – to rigorous imprisonment of one year, minimum under section 354.
Read also: Calcutta HC says voluntary sex acts with minors will not be POCSO case, rape accused acquitted
its permanent justice cost
These two decisions put Justice Ganediwala in trouble in verifying his judgeship. On January 28 this year, when Bee was to be appointed as a permanent judge of the court, in a rare move, the Supreme Court Collegium withdraw your offer It has been sent to the government for confirmation.
Accordingly, the Central Government extended guideline His term as additional judge for one more year instead of making it permanent on February 13.
according to a earlier report By ThePrint, two sitting Supreme Court judges, who had served in the Bombay High Court in the past, also raised objections against his elevation as additional judges of the Bombay HC in 2019.
Both judges provided a detailed analysis of the judgments written by them in the trial court in 2017-18 to demonstrate that they “lacked knowledge of the law”. However, the collegium defied the reservation and cleared his name for appointment as a judge of Bombay HC on 16 January 2019.
(Edited by Neha Mahajan)
Read also: Consensual sex with chief not a crime but immoral, immoral, says Allahabad HC
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